Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Fresno County Nos. F09100090, F09100121. Mark W. Snauffer, Judge.
Ann P. Bergen, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Kathleen A. McKenna and Leslie W. Westmoreland, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Before Levy, Acting P.J., Poochigian, J., and Detjen, J.
A jury convicted appellant, Alfonso Ildefonso Lopez, of corporal injury on a spouse or cohabitant (count 1/Pen. Code, § 273.5, subd. (a)), making criminal threats (count 2/§ 422), and misdemeanor assault (count 3/§ 240), a lesser included offense of the felony assault charged in count 3.
Unless otherwise indicated, all further statutory references are to the Penal Code.
On September 30, 2009, the court sentenced appellant to the middle term of three years on count 1, a concurrent two-year term on count 2, and credit for time served on count 3.
On appeal, Lopez contends: 1) he was improperly convicted of misdemeanor assault; and 2) the court erred in admitting the victim’s preliminary hearing testimony into evidence. We will find merit to Lopez’s first contention and reverse his conviction on count 3. In all other respects, we will affirm.
Lopez also contends that the court violated section 654’s proscription against multiple punishment when it sentenced him to time served on count 3. This contention is moot in light of our decision to reverse Lopez’s assault conviction in count 3.
FACTS
Introduction
Lopez and Margarita Cortez were involved in a relationship for five years and had a two-year-old son together. On February 4, 2009, Huron police officers arrested Lopez after he was involved in a domestic altercation with Cortez.
On July 2, 2009, the Fresno County District Attorney’s office issued a first amended information charging Lopez with two counts of making criminal threats (counts 2 & 7) and one count each of corporal injury on a spouse or cohabitant (count 1), assault by means of force likely to produce great bodily injury (count 3), misdemeanor battery (count 4/§ 242), cruelty to a child (count 5/§ 273a, subd. (b)), and dissuading a witness (count 6/§ 136.1, subd. (c)(1)). Counts 1 and 2 also alleged a great bodily injury enhancement (§ 12022.7, subd. (e)).
Cortez testified at the preliminary hearing in this matter, which was held on May 18, 2009. However, on August 10, 2009, District Attorney Investigator Mario Leal made several attempts to contact Cortez and subpoena her for trial and was informed that Cortez had gone back to Mexico. On August 18, 2009, after conducting an Evidence Code section 402 hearing, the court granted the prosecutor’s motion to use Cortez’s preliminary hearing testimony at the trial. During Lopez’s trial, Cortez’s preliminary hearing testimony was read into the record.
The Hearing on the Motion to Use Cortez’s Preliminary Hearing Testimony
At the hearing on the prosecutor’s motion to introduce Cortez’s preliminary hearing testimony at trial, Investigator Leal testified that he first contacted Cortez on March 17, 2009. At that time, she did not give him any indication that she was going to leave the area.
On August 10, 2009, Leal attempted to contact Cortez to inform her of the trial date and to subpoena her. Leal ran a reverse phone number check on the phone number he had for Cortez and checked the Cal Works System to see if he could find a new address for her. The only information he found, however, was that Cortez had used her food stamps at a market in Coalinga.
Leal then contacted Cortez’s friend, Blanca Guzman, who told him that she had not talked to Cortez for more than a month. Guzman also informed Leal that Cortez had a boyfriend named Sergio Medina, and took him to Medina’s house. Medina told Leal that Cortez was in Mexico, but he was not able to give Leal any contact information because he lost this information when his cell phone got wet.
Leal next contacted Maldolino Reyes, Cortez’s uncle, who informed Leal that he had last seen Cortez in Huron about two and a half months earlier. Reyes did not have any contact information for Cortez and told Leal only that Cortez was back in Mexico, in the village where she lived before.
At Cortez’s last known address, a woman named Marisol told Leal that she had been living there a month and did not know Cortez.
Leal also contacted Carlos Alvarado whose name he got from Guzman and Medina. Alvarado did not know where Cortez was living or have any contact information for her.
Leal further testified that earlier that day he received a 15-minute phone call from Cortez on his cell phone from a telephone number that appeared to be from Mexico or from out of the country. Cortez said she was calling from a café in Mexico City. Leal told Cortez that the case was going to trial and they needed her to come to court. Cortez responded by asking Leal if she would get in trouble if she did not go. Cortez was not very cooperative and seemed like she did not want to participate in the trial. Leal told Cortez that if she wanted to cooperate he was there to provide her with services to get her to court and that they were having the trial for her because she was the victim in the case. Cortez repeatedly asked whether she was going to get in trouble if she did not come back. However, she refused to give any information on how to contact her.
On cross-examination Leal testified that he read the police reports filed in the underlying matter and that nothing in the reports suggested Cortez would not be cooperative. Leal acknowledged that when he first contacted Cortez in March 2009, she expressed a certain amount of apprehension in going through the judicial process, which was natural for victims of domestic violence, and she informed him that she was not legally in this country. Cortez, however, never indicated to him she would not cooperate in prosecuting the case and Leal did not take any steps to secure her attendance at future court proceedings.
After Leal testified, the prosecutor stated for the record that the matter was initially set for trial on July 2, 2009, and then continued to July 20, 2009. On July 13, 2009, soon after receiving the file, the prosecutor spoke with the investigating officer, Huron Police Officer Jose Puga, and let him know that he needed to locate Cortez. Puga contacted Guzman and was told that Cortez had left for Mexico.
On August 19, 2009, the court granted the prosecution’s motion to introduce Cortez’s preliminary hearing testimony at trial.
The Trial Testimony
During the trial, the court had various people read the transcript of Cortez’s preliminary hearing testimony into the record. The court, the prosecutor, and defense counsel each read the respective parts of those preliminary hearing participants and a representative from the district attorney’s office read Cortez’s testimony into the record.
According to Cortez’s preliminary hearing testimony, on February 4, 2009, at approximately 6:00 p.m., when Lopez got home Cortez asked him for $40 to pay for a babysitter. Lopez told Cortez he did not want to give her any money and that he was going to kill her. He then grabbed Cortez by the neck and hair, pulled her head back, and kicked her on the head several times. Lopez also pushed their son aside and beat him, leaving bruises by his eyes and on his chin.
Lopez hit and kicked Cortez about ten times. The blows to the head caused Cortez to lose consciousness as she used her cell phone to call Guzman. When Cortez regained consciousness, Guzman was trying to get Lopez off of her. Throughout the ordeal, Lopez kept saying that he wanted to finish killing Cortez and their son. Cortez believed Lopez’s threats because he had threatened to kill her and had been violent with her on prior occasions. The next day, Cortez’s head hurt, she had swelling around both eyes, and she had bruising on her right cheek and on the lower right side of her neck.
On February 11, 2009, Lopez called Cortez and told her that if she did not dismiss the charges against him, he was going to make her and their son disappear. Cortez reported the threat to Officer Puga.
Guzman testified that on February 4, 2009, she received a call from Cortez and could hear noise as if Cortez was arguing with someone. She also heard Cortez say they are hitting me and then heard the child crying. The call lasted less than a minute before it was cut off. When Cortez called Guzman a second time, Guzman could hear her crying and moaning. Guzman hung up the phone and drove to Cortez’s apartment, which was located two to three blocks away.
Guzman opened the apartment door without knocking and saw Lopez kick Cortez on the right side of her head as she lay on the floor unconscious. Guzman walked toward Cortez and got on top of her. Lopez pushed Guzman off of Cortez and yelled, “Leave her alone, I want to finish her off once and for all.” Guzman then put ice and alcohol on Cortez, but she would not regain consciousness and her lips turned purple. After failing to find Cortez’s pulse, Guzman gave Cortez mouth to mouth resuscitation for 20 minutes. When Cortez finally regained consciousness, Guzman stood her up. Lopez then grabbed Cortez and Guzman called the police. Lopez told Cortez to tell Guzman not to call the police because they would take their son away.
Officer Puga testified that after he responded to the scene, Cortez complained she was dizzy and in severe pain and that her head, throat, neck, and side of her face hurt. According to Puga, Guzman told him only that she saw Lopez yelling at Cortez. Guzman, however, did not tell him that she saw Lopez kick Cortez or that Lopez stated he wanted to “finish off” Cortez and her son. Officer Puga did not see any blood or signs of a struggle in the apartment.
Lopez testified that on February 4, 2009, when he arrived home, Cortez was talking with Guzman. Lopez went outside and was playing with his son when the next door neighbor gave him a beer. Guzman and Cortez then went outside and argued with the neighbor. After a few minutes, Guzman left and Cortez went back inside the apartment. When the neighbor left, Lopez went inside the apartment. Cortez then asked him for $40 for the babysitter. Lopez told her he would give her the money the next day because he only had $100 bills. Cortez reacted by pulling his hair, pushing him, and hitting him on the cheek. Cortez also asked Lopez why he was spending his money on the “bastard” child, which Lopez understood as a reference to a child he had with Melissa Merino. Cortez told Lopez that if he did not go to jail that day, his mother in Mexico would pay for it. Cortez then struck him four to five times on the face and on his back as he stood up. According to Lopez, all he did was pull Cortez’s shirt. When Cortez stopped hitting Lopez, he telephoned Guzman so Guzman would tell her to stop and to tell Guzman to stop saying things to Cortez to instigate her. Guzman said she would talk to Cortez and that she was on the way over. Guzman was calm when she first walked into the apartment, but she started yelling at Lopez when she saw that Cortez’s neck was red. Guzman pushed Lopez on to the couch and told him she was going to throw him in jail because he previously had Cortez put in jail. Guzman then called the police.
DISCUSSION
Lopez’s Assault Conviction
Lopez contends he was improperly convicted of assault in count 3 because assault is a lesser included offense of inflicting corporal injury on a cohabitant in violation of section 273.5. Respondent concedes and we agree.
Simple assault in violation of section 240 is a necessarily included offense of inflicting corporal injury on a cohabitant in violation of section 273.5. (People v. Gutierrez (1985) 171 Cal.App.3d 944, 952.) “If the evidence supports the verdict as to a greater offense, the conviction of that offense is controlling, and the conviction of the lesser offense must be reversed.” (People v. Moran (1970) 1 Cal.3d 755, 763.) Accordingly, we agree with the parties that Lopez’s conviction for assault must be reversed.
Cortez’s Preliminary Hearing Testimony
Lopez contends the court violated his constitutional right to confrontation when it allowed the prosecutor to introduce Cortez’s preliminary hearing testimony into evidence at his trial. We disagree.
“A defendant has a constitutional right to confront witnesses, but this right is not absolute. If a witness is unavailable at trial and has testified at a previous judicial proceeding against the same defendant and was subject to cross-examination by that defendant, the previous testimony may be admitted at trial. [Citations.] The constitutional right to confront witnesses mandates that, before a witness can be found unavailable, the prosecution must ‘have made a good-faith effort to obtain his presence at trial.’ [Citations.] The California Evidence Code contains a similar requirement. As relevant, it provides that to establish unavailability, the proponent of the evidence, here the prosecution, must establish that the witness is absent from the hearing and either that ‘the court is unable to compel his or her attendance by its process’ [citation] or that the proponent ‘has exercised reasonable diligence but has been unable to procure his or her attendance by the court's process’ [citation]. The constitutional and statutory requirements are ‘in harmony.’ [Citation.] The proponent of the evidence has the burden of showing by competent evidence that the witness is unavailable. [Citation.]” (People v. Smith (2003) 30 Cal.4th 581, 609.)
Here, Cortez testified at Lopez’s preliminary hearing in May 2009. Further, the prosecutor did not have any indication that Cortez might not be available to testify at trial until July 13, 2009, when the prosecutor asked Officer Puga to contact Cortez and Puga determined that she had gone to Mexico.
On August 10, 2009, after the trial date had been continued, Investigator Leal checked Cortez’s last known address and found that another woman had been living there for about a month. He also ran a reverse phone number check and a check through the Cal Works System but was unable to obtain new contact information for Cortez. Leal also contacted Guzman, Carlos Alvarado, Cortez’s boyfriend, and Cortez’s uncle. Further, although these latter two contacts informed Leal that Cortez had gone to Mexico, neither could provide him with any contact information for her. Additionally, on the day of the hearing, Leal received a call from Cortez who told him that she was calling from a café in Mexico City. Leal attempted to coax Cortez into returning to court to testify by telling her he would make the necessary arrangements and trying to make her feel guilty about not returning, but Cortez was uncooperative and refused to provide Leal with any contact information. The record thus shows that the prosecutor made reasonable efforts to contact Cortez to have her testify, but that these efforts were ultimately thwarted by Cortez, who proved to be an uncooperative witness.
Lopez contends that the prosecutor’s investigator knew as of March 2009 that Cortez was undocumented and that as a domestic violence victim, Cortez was apprehensive about testifying. Thus, according to Lopez, the prosecutor should have taken some steps to secure her testimony for future court proceedings like requiring her to post a surety bond. We disagree.
“Ordinarily, ‘[t]he prosecution is not required “to keep ‘periodic tabs’ on every material witness in a criminal case....” [Citation.]’” (People v. Herrera (2010) 49 Cal.4th 613, 630.) Also, “the prosecution is not required, absent knowledge of a ‘substantial risk that this important witness would flee, ’ to ‘take adequate preventative measures’ to stop the witness from disappearing. [Citations.]’ [Citation.]” (People v. Wilson (2005) 36 Cal.4th 309, 342.)
Here, Investigator Leal knew that Cortez was undocumented and, like many domestic violence victims, apprehensive about testifying. He also knew that it was not unusual for such victims to become unavailable when the case came up for trial. However, Cortez had not done anything to indicate there was a substantial risk that she would flee. To the contrary, her conduct in testifying at the preliminary hearing strongly suggested that no such risk existed.
Lopez misplaces his reliance on People v. Louis (1986) 42 Cal.3d 969 (Louis) to argue that a risk of flight existed here. Louis involved a murder prosecution in which the evidence against the appellant consisted almost exclusively of the preliminary hearing testimony of witness Tolbert. Tolbert’s damning testimony included an admission purportedly made by the defendant that he shot the murder victim. After testifying at the defendant’s preliminary hearing, Tolbert was incarcerated in county jail when the trial of several codefendant’s started. In order to induce Tolbert to testify, the prosecutor agreed to allow Tolbert to be released on his own recognizance for a weekend so he could spend it with an unnamed friend at an undisclosed location. After he was released, Tolbert promptly disappeared.
Besides being a critical witness, Tolbert’s reliability and credibility were highly suspect. It was known to the parties and to the court “that Tolbert had been convicted of several felonies, including burglary, grand theft, and receiving stolen property; that he had been committed to a hospital for the criminally insane; that he had used nine or ten aliases over a long and varied criminal career; that he habitually failed to make court appearances and had to be arrested to compel his attendance; and that he apparently had some expectation of receiving a reward if the defendants were convicted as a result of his testimony.” (Louis, supra, 42 Cal.3d at p. 989.) In fact, the prosecutor admitted that there was a real possibility that Tolbert would abscond after he was released. (Id. at p. 992.) Thus, in finding that the prosecutor had not met his burden of showing due diligence the Louis court stated:
“On the facts of this case, the diligence required of the prosecution to prevent Tolbert from becoming absent was particularly high. Defendant was to go on trial for his life; Tolbert was a critical prosecution witness, and was known to be both unreliable and of suspect credibility-the very type of witness that requires, but is likely not to appear to submit to, cross-examination before a jury.” (Id. at p. 991, italics added.)
Louis is easily distinguishable because the prosecutor there had every reason to believe that the witness in that case (Tolbert) was likely to flee, and admitted there was a real possibility that he would flee. In contrast, the prosecutor here had no reason to believe Cortez would make herself unavailable to testify except for the normal apprehensiveness over testifying that is common among domestic violence victims. Additionally, Cortez’s appearance at the preliminary hearing seemed to indicate that she would testify. Nor did Cortez have any apparent credibility issues, let alone any of the magnitude that witness Tolbert had.
Lopez also contends the prosecutor was not diligent because although she learned in July 2009 that Cortez was in Mexico, she did not initiate any steps then to locate her there; she did not use the provisions of the Treaty on Cooperation Between the United States of America and the United Mexican States for Mutual Legal Assistance, which became effective on May 3, 1991, (People v. Sandoval (2001) 87 Cal.App.4th 1425, 1439) to take her testimony in Mexico through videoconferencing; she did not attempt to determine visa requirements for Cortez or make travel arrangements for her; and she did not threaten her in order to coerce her into returning to the United States to testify. We disagree.
Article 7 of this treaty allows a prosecutor in the United States to request Mexican authorities to compel a witness in Mexico to appear and testify in Mexico, which testimony can presumably be transmitted to the United States. (People v. Sandoval, supra, 87 Cal.App.4th at p. 1439.)
“The prosecution must take reasonable steps to locate an absent witness, but need not do ‘a futile act.’ [Citation.]” (People v. Smith (2003) 30 Cal.4th 581, 611.)
Although Cortez called Investigator Leal, she told him only that she was in a café in Mexico City and she refused to provide him with any contact information. Absent Cortez’s cooperation, the prosecutor had no way to invoke the provisions of the above-noted treaty to have her testify in Mexico or any reason to inquire regarding obtaining a visa for Cortez or to make travel arrangements for her. Nor can Investigator Leal be faulted for not threatening Cortez if she did not return to the United States. Since Leal did not have contact information for Cortez, he would not have been able to contact her once she hung up. Given these circumstances, it was not unreasonable for Leal to try to gently coax Cortez into agreeing to return voluntarily instead of trying to coerce her with idle threats. Thus, due to Cortez being uncooperative, any other attempts to get her to return to testify would have been futile whether they were initiated in July 2009, when the prosecutor first learned she might be in Mexico, or after August 10, 2009.
Sandoval, supra, 87 Cal.App.4th 1425, is inapposite. In Sandoval the unavailable witness (Zavala) was in Mexico and had agreed to return to the United States to testify if the prosecutor gave him $100, which he needed to travel to Mexico City to obtain a visa. The prosecutor, however, refused. Thus, in view of the witness’s willingness to return to testify and his request for the reasonable sum of $100, which the prosecutor refused to provide, the Sandoval court found that the prosecutor had not exercised reasonable diligence in trying to obtain the witness. In so finding, the court stated:
“The circumstances presented to the prosecution, including finding Zavala, receiving from him his assurance he wanted to cooperate, and determining that he needed funds to comply, left the prosecution with several options. There was a possibility, not remote, even perhaps a likelihood, that Zavala would attend if the prosecution assisted him. (See Ohio v. Roberts [(1980)] 448 U.S. [56, ] at p. 74 … [attempt to obtain attendance necessary if ‘possibility, albeit remote, that affirmative measures might produce... their effectuation’].)” (Id. at pp. 1441-1442.)
Sandoval is easily distinguishable because unlike the witness in Sandoval, Cortez was clearly uncooperative, the prosecutor in Sandoval apparently had contact information for the witness, whereas the prosecutor here did not have contact information for Cortez; and, unlike the prosecutor in Sandoval, here the prosecutor through Investigator Leal offered to make the necessary arrangements to have Cortez return to court to testify. Accordingly, we reject Lopez’s contention that the court erred when it allowed the prosecutor to introduce Cortez’s preliminary hearing testimony into evidence at trial.
Lopez also contends that there was an “inherent prejudice” in allowing a representative from the district attorney’s office to read Cortez’s preliminary hearing testimony. We reject this argument because Lopez has not offered any argument or authority in support thereof. (People v. Freeman (1994) 8 Cal.4th 450, 482, fn. 2 [A reviewing court need not discuss claims that are asserted perfunctorily and insufficiently developed.].)
DISPOSITION
Lopez’s misdemeanor assault conviction (count 3/§ 240) is reversed and the sentence on that count, including any conviction based assessments, is vacated. The trial court is directed to prepare an amended abstract of judgment consistent with this opinion and to forward a certified copy to the Department of Corrections. As modified, the judgment is affirmed.